Page 1
March 27, 2023 HB 23-1138
Legislative Council Staff
Nonpartisan Services for Colorado’s Legislature
Revised Fiscal Note
(replaces fiscal note dated February 10, 2023)
Drafting Number:
Prime Sponsors:
LLS 23-0179
Rep. Amabile; Soper
Date:
Bill Status:
Fiscal Analyst:
March 27, 2023
House Appropriations
Aaron Carpenter | 303-866-4918
aaron.carpenter@coleg.gov
Bill Topic: PROCEDURES RELATED TO ADULT COMPETENCY
Summary of
Fiscal Impact:
☐ State Revenue
☒ State Expenditure
☐ State Transfer
☐ TABOR Refund
☒ Local Government
☐ Statutory Public Entity
The bill allows a district attorney, a medical professional, a representative of the
Behavioral Health Administration, or a representative from the Office of Civil and
Forensic Mental Health to initiate a proceeding for a certification for short-term
treatment. Starting in FY 2023-24, the bill increases state expenditures on an ongoing
basis.
Appropriation
Summary:
No appropriation is required.
Fiscal Note
Status:
This revised fiscal note reflects the introduced bill, as amended by the House Judiciary
Committee.
Table 1
State Fiscal Impacts Under HB 23-1138
Budget Year
FY 2023-24
Out Year
FY 2024-25
Out Year
FY 2025-26
Revenue - -
Expenditures General Fund - $362,968 $370,355
Centrally Appropriated - $57,992 $63,863
Total Expenditures - $420,960 $434,218
Total FTE - 2.7 FTE 3.0 FTE
Transfers - - -
Other Budget Impacts General Fund Reserve - $54,445 $55,553
Page 2
March 27, 2023 HB 23-1138
Summary of Legislation
Starting July 1, 2024, the bill allows a district attorney, a medical professional, a representative of the
Behavioral Health Administration (BHA), or a representative from the Office of Civil and Forensic
Mental Health (OCFMH) in the Department of Human Services (DHS) to initiate a proceeding for a
certification for short-term treatment in the following circumstances:
when the defendant is found incompetent to proceed, is charged with a misdemeanor or lesser
offense, the prosecuting attorney agrees, and the court believes the defendant meets the standard
for a certification for short-term treatment; and
when the court determines that there is not a substantial probability that the defendant will be
restored to competency within the reasonably foreseeable future, and the court finds reasonable
grounds to believe the defendant meets criteria for a certification for short-term treatment.
Process for short-term certification. The bill establishes the processes for certifying a person for
short-term treatment for individuals found incompetent to proceed. The bill requires that an attorney
be appointed for the respondent, and outlines other conditions for short-term certification.
Dismissal/stay of charges and stay of dismissal. The bill allows the court to forgo any order of
restoration and to dismiss the charges when a certification for short-term treatment proceeding is
initiated for defendants charged with a misdemeanor or lesser offense and who is found incompetent
to proceed. If the case is not dismissed, or the defendant is charged with a felony, the court may stay
the restoration order to allow for short-term certification. The court may also stay the dismissal from
confinement for 35 days for a medical professional to petition for short-term certification, if the court
believes the defendant meets the criteria for certification.
Reports and information. Finally, the bill makes several changes to required information in
evaluation reports, including whether the defendant meets the criteria for an emergency mental health
hold, a certification for short-term treatment, or has an intellectual and developmental disability. The
initial evaluation must be submitted to the court within 14 days after meeting the defendant to conduct
the evaluation and allows the report to be submitted electronically.
Assumptions
In 2022, there were 2,871 criminal cases that contained a finding that the defendant was incompetent
to proceed and committed them to treatment. The fiscal note assumes that 5 percent of these cases, or
144 cases, will be transferred to the civil system under the bill.
Page 3
March 27, 2023 HB 23-1138
State Expenditures
The bill increases state General Fund expenditures in the Judicial Department and the BHA by about
$421,000 in FY 2024-25 and $434,000 and 3.0 FTE in FY 2025-26 and each year thereafter. The bill also
impacts workload in the OCFMH. Expenditures are shown in Table 2 and detailed below.
Table 2
Expenditures Under HB 23-1138
FY 2023-24 FY 2024-25 FY 2025-26
Judicial Department
Court-Appointed Attorneys - $37,539 $37,539
Judicial Subtotal - $37,539 $37,539
Behavioral Health Administration (BHA)
Personal Services - $301,369
$328,766
Operating Expenses - $4,050 $4,050
Capital Outlay Costs - $20,010 -
Centrally Appropriated Costs
1
- $57,992
$63,863
FTE – Personal Services - 2.7 FTE 3.0 FTE
BHA Subtotal - $383,421 $396,679
Total Costs - $420,960 $434,218
Total FTE - 2.7 FTE 3.0 FTE
1
Centrally appropriated costs are not included in the bill's appropriation.
Judicial Department. Starting in FY 2024-25, expenditures in the Judicial Department will increase to
provide attorneys to individuals involved in short-term certification cases. The fiscal note assumes
that nearly all (90 percent) of the assumed 144 cases (129 cases) transferred to civil court will require
a court-appointed attorney at the average cost of $291 per case.
Behavioral Health Administration (DHS). Starting in FY 2024-25, the BHA requires 3.0 FTE to
provide training and care coordination for the new short-term certification procedures. This includes
1.0 FTE Training Specialist to train providers, judges, and other caregivers about the new process to
certify someone for treatment transferred from the criminal system, and to train parties involved in
the criminal system on the civil system. In addition, 2.0 FTE Program Managers are required to
provide care coordination to the estimated 144 cases being considered for short-term certification.
First-year costs are prorated the General Fund pay date shift. Standard operating and capital outlay
costs are also included for this staff.
Service costs. In addition, to the extent more individuals are certified for short-term treatment
and are referred to services within the BHA, service costs will increase. These costs will be
addressed through the annual budget process based on actual caseload.
Page 4
March 27, 2023 HB 23-1138
Office of Civil and Forensic Mental Health (DHS). Starting in FY 2023-24, workload in the OCFMH
will increase to the extent that staff are required to petition the court for civil commitment, and
decrease to the extent individuals are transferred out of the criminal system and into the civil system.
Because there is a backlog for the state mental health hospitals, no cost savings from bed impacts is
expected. Overall, the fiscal note assumes that the overall impact to OCFMH will be minimal.
Centrally appropriated costs. Pursuant to a Joint Budget Committee policy, certain costs associated
with this bill are addressed through the annual budget process and centrally appropriated in the Long
Bill or supplemental appropriations bills, rather than in this bill. These costs, which include employee
insurance and supplemental employee retirement payments, are shown in Table 2.
Other Budget Impacts
General Fund reserve. Under current law, an amount equal to 15 percent of General Fund
appropriations must be set aside in the General Fund statutory reserve. Based on this fiscal note, the
bill is expected to increase the amount of General Fund held in reserve by the amounts shown in
Table 1, decreasing the amount of General Fund available for other purposes.
Local Government
County jails. To the extent individuals are transferred to the civil system instead of being housed in
jail, costs to county jails will decrease.
Effective Date
The bill takes effect on July 1, 2024, assuming no referendum petition is filed.
State and Local Government Contacts
Behavioral Health Administration District Attorneys Human Services
Information Technology Judicial
The revenue and expenditure impacts in this fiscal note represent changes from current law under the bill for each
fiscal year. For additional information about fiscal notes, please visit: leg.colorado.gov/fiscalnotes.